Ramos v Good Samaritan Industries (No 2)
[2011] FMCA 341
•24 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAMOS v GOOD SAMARITAN INDUSTRIES (No.2) | [2011] FMCA 341 |
| INDUSTRIAL LAW – Fair Work – claim for compensation for adverse action including constructive dismissal from employment following a complaint made by the employee. |
| Fair Work Act 2009 (Cth), ss.336, 340, 341, 342, 346, 351, 352, 360, 361, 362, 386, 539, 545, 546, 547 |
| Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd & Anor [2011] FMCA 58 Bailey v Peakhurst Bowling & Recreation Club Ltd [2009] NSWDC 284 Barclay & Anor v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14, (2011) 274 ALR 570 Blair v Australian Motor Industries Limited (1982) 61 FLR 283 Hodkinson v Commonwealth [2011] FMCA 171 Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 Mendicino v Tour-Dex Pty Ltd [2010] FWA 9114 O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 Police Federation of Australia and Another v Nixon and Anor (2008) 168 FCR 340 Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 |
| Applicant: | AGUSTIN RAMOS |
| Respondent: | GOOD SAMARITAN INDUSTRIES |
| File Number: | PEG 178 of 2010 |
| Judgment of: | Driver FM |
| Hearing dates: | 12 & 13 May 2011 |
| Delivered at: | Sydney, via telephone link to Perth |
| Delivered on: | 24 August 2011 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondent: | Mr S Kemp |
| Solicitors for the Respondent: | Jackson McDonald |
ORDERS
The application filed on 29 September 2010 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 178 of 2010
| AGUSTIN RAMOS |
Applicant
And
| GOOD SAMARITAN INDUSTRIES |
Respondent
REASONS FOR JUDGMENT
Introduction and background
By an application filed on 29 September 2010 Mr Ramos seeks relief pursuant to s.340(1) of the Fair Work Act 2009 (Cth) (“Fair Work Act”) because of adverse action said to have taken against him by Good Samaritan Industries (GSI) because Mr Ramos had exercised a workplace right and made a complaint against a manager.
The application is supported by points of claim filed on 15 November 2010 and by numerous affidavits filed by Mr Ramos, notably his affidavits filed on 15 November 2010, 24 December 2010 and 31 March 2011. I accepted all of the evidence subject to relevance and submissions. Mr Ramos was cross-examined on his affidavits.
The application is resisted by GSI which relies upon its response and statement of defence filed on 15 October 2010, its further response filed on 26 October 2010, its points of defence filed on 10 December 2010 and the following affidavits:
a)the affidavits of John Mark Knowles filed on 10 December 2010 and 21 April 2011 (two affidavits);
b)the affidavits of Michael Neil Gordon filed on 10 December 2010 and 20 April 2011 (two affidavits);
c)the affidavit of Debbie Ann Cameron filed on 10 December 2010;
d)the affidavit of Sou Lin Tan filed on 10 December 2010; and
e)the affidavits of Joy Esme Wilson filed on 10 December 2010 and 21 April 2011 (two affidavits).
I received that evidence. Only Mr Knowles was required for cross‑examination.
By way of background, Mr Ramos has about 30 years employment experience. In 1981, Mr Ramos graduated from De La Salle Catholic College and entered the workforce. From 1981 to 1990, he was employed by Coles Myer Pty Ltd where he developed a career in retail management. From 1991 to 1999, he was employed by Roy Weston Pty Ltd. From 2000 to 2008, Mr Ramos became self employed. From 22 June 2009 to 22 July 2010, he was employed by GSI as the store manager at GSI’s store in the Perth suburb of Dianella. The details of that employment and the dispute between the parties are as follows.
On 2 June 2009, Mr Ramos submitted an application for employment with GSI[1]. On 18 June 2009, GSI offered him an employment contract as the Dianella Store Manager[2]. On 22 June 2009, he commenced employment with GSI. On 14 October 2009, GSI advised him that he had successfully completed a three month probationary period[3].
[1] Annexure A1 of Mr Ramos’ affidavit sworn 14 November 2010
[2] Annexure A2 of Mr Ramos’ affidavit sworn 14 November 2010
[3] Annexure A3 of Mr Ramos’ affidavit sworn 14 November 2010
On 9 December 2009, Mr Ramos submitted an application for promotion to retail operations manager with GSI[4]. On 17 December 2009, he was granted an interview with Ms Debbie Cameron and Mr John Knowles. He was one of three candidates to be selected for an interview for the promotion to the position of retail operations manager.
[4] Annexure A4 of Mr Ramos’ affidavit sworn 14 November 2010
On 12 February 2010, Mr Michael Gordon, Mr Ramos’ retail operations manager at the time, visited the Dianella store. On 15 February 2010, Mr Ramos received a faxed letter from Mr Gordon in which he provided him with a list of written instructions which Mr Gordon required Mr Ramos to implement before his next visit due on 23 February 2010[5]. On 23 February 2010, Mr Gordon visited the Dianella store to check progress regarding the implementation of his previous written instructions from his visit on 12 February 2010.
[5] Annexure A5 of Mr Ramos’ affidavit sworn 14 November 2010
On 24 February 2010, Mr Ramos received a faxed letter from Mr Gordon regarding his visit on 23 February 2010. Mr Gordon in his letter noted progress in that efforts had been made to implement his required changes to the Dianella store[6] and gave further instructions for improvements.
[6] Annexure A6 of Mr Ramos’ affidavit sworn 14 November 2010
On 30 March 2010, Mr Ramos attended a manager’s meeting at GSI head office. At this meeting:
a)Ms Cameron answered in the negative a question from Mr Ramos whether the retail stores could close for Easter Saturday 2010[7].
b)Ms Cameron made Mr Ramos aware of his entitlement to claim motor vehicle usage for work purposes. GSI had apparently not previously informed him of this entitlement[8].
c)There was an exchange between Mr Ramos and Ms Cameron during a training scenario which became an issue of concern.
[7] Paragraph 26 of Ms Cameron’s affidavit sworn 10 December 2010
[8] Paragraph 32 of Ms Cameron’s affidavit sworn 10 December 2010
On 31 March 2010, Mr Michael Gordon met with Mr Ramos at the Dianella store. At that meeting:
a)Mr Gordon criticised Mr Ramos in relation to his behaviour at the manager’s meeting 30 March 2010;
b)Mr Gordon criticised Mr Ramos for his use of the word “darl”;
c)Mr Gordon criticised Mr Ramos for the 2009/2010 Dianella store sales figures being below budget;
d)Mr Ramos believed Mr Gordon should accept some responsibility or accountability for the 2009/2010 Dianella store sales.
e)Mr Gordon discussed with Mr Ramos his claims for overtime. Mr Ramos told Mr Gordon that he would not agree to work unpaid overtime. Mr Gordon invited Mr Ramos to rethink his position as the Dianella store manager.
On 6 April 2010, Mr Ramos submitted a complaint addressed to the human resources manager of GSI. The complaint was against GSI’s divisional operations manager Ms Cameron and the retail operations manager Mr Gordon[9].
[9] Annexure A9 of Mr Ramos’ affidavit sworn 14 November 2010
Mr Knowles, after receiving the complaint, advised Mr Ramos that GSI did not have a human resources manager. Mr Knowles himself conducted an investigation into the complaint.
Mr Ramos is dissatisfied with the investigation of this complaint and contends that GSI took adverse action against him because of his complaint in the following respects.
Letter from Mr Knowles dated 23 April 2010
In a letter from GSI dated 23 April 2010, GSI allegedly:
a)threatened Mr Ramos with disciplinary action;
b)discriminated between him as an employee and the other employees by choosing to side with Mr Gordon and Ms Cameron instead of him.
Letter from Knowles dated 3 May 2010
In a letter from GSI dated 3 May 2010, GSI notified a decision to transfer Mr Ramos from Dianella to a store at Armadale, which Mr Ramos found inconvenient.
Letter from Mr Knowles dated 12 May 2010
In a letter from GSI dated 12 May 2010, GSI allegedly:
a)threatened Mr Ramos with dismissal;
b)required Mr Ramos to sign a performance management framework contract in order for him to retain his position as the Dianella store manager;
c)threatened Mr Ramos with disciplinary action in reference to issues of vehicle allowance claims, a banking shortfall from 27 April 2010 and sick leave taken on 1 May 2010.
Letter from Knowles dated 19 May 2010
In a letter from GSI dated 19 May 2010, GSI rejected Mr Ramos’ claim for “time off in lieu” (TOIL) claimed for overtime worked. GSI claimed that it had rejected Mr Ramos’ TOIL claim because he had not adhered to its TOIL register policy.
Visits from Ms Joy Wilson to the Dianella store
During the period of 18 May 2010 to 3 June 2010, Ms Wilson made numerous visits to the Dianella store which Mr Ramos contends undermined his position as store manager.
Email dated 2 June 2010 sent by Ms Zina Pino received by Ms Joy Wilson
On 2 June 2010, Ms Wilson received an email from Ms Pino (another employee) with an attached unsigned letter. Ms Wilson asked Ms Pino to submit a signed complaint.[10] On 3 June 2010, Ms Wilson then gave a copy of the email dated 2 June 2010 with the attached unsigned letter to both Ms Cameron and Mr Knowles.[11] On 3 June 2010, GSI suspended Mr Ramos from his employment as the Dianella Store Manager.[12]
[10] Annexure A53 (at [1], page 61) of Mr Ramos’ affidavit sworn 24 December 2010.
[11] Annexure A53 (at [1], page 61) of Mr Ramos’ affidavit sworn 24 December 2010.
[12] “Breach of Discipline” Annexure A31 of Mr Ramos’ affidavit sworn 14 November 2010.
Letter from Knowles dated 16 June 2010
In a letter from GSI dated 16 June 2010, GSI gave Mr Ramos a final warning, which Mr Ramos treated as a threat of disciplinary action and threat of dismissal.
Mr Ramos’ “constructive dismissal” by GSI
Mr Ramos claims that the actions by GSI constituted his constructive dismissal by making his position untenable, thereby forcing or giving him strong inducement to resign from his employment, which he did on 22 July 2010.
This alleged constructive dismissal is itself said to be adverse action which GSI took against Mr Ramos, in breach of ss.340 and 342 of the Fair Work Act.[13]
[13] Annexure A40 of Mr Ramos’ affidavit sworn 14 November 2010.
Mr Ramos seeks the following relief:
a)Pursuant to s.545(2)(b) of the Fair Work Act, GSI pay compensation to Mr Ramos for past and future loss of income amounting to $1,370,316 together with interest from the date the cause of action arose to the date the order is made pursuant to s.547 of the Fair Work Act.
b)Pursuant to s.545(2) of the Fair Work Act, GSI pay compensation to Mr Ramos for past and future loss of superannuation benefits amounting to $124,647 together with interest from the date the cause of action arose to the date the order is made, pursuant to s.547 of the Fair Work Act.
c)Pursuant to s.545(1) of the Fair Work Act, GSI pay compensation to Mr Ramos for past unpaid claimed overtime amounting to $6,419, together with interest pursuant to s.547 of the Fair Work Act.
d)Pursuant to s.545(1) and/or 570(2) of the Fair Work Act, GSI pay Mr Ramos’ legal costs and court costs that have been incurred by Mr Ramos as a result of these proceedings.
e)Pursuant to s.546(1) of the Fair Work Act, that GSI pay pecuniary penalties that the Court considers appropriate for the contraventions of ss.340 and 342 of the Fair Work Act.
f)Pursuant to s.546(3) of the Fair Work Act, that GSI pay the pecuniary penalties to Mr Ramos.
g)Pursuant to s.539 of the Fair Work Act, that GSI be ordered to pay the maximum penalty in relation to each contravention of the civil remedy provision or provisions in item 11 of the table in s.539(2).
h)Pursuant to ss.545(2)(b) and 545(1) of the Fair Work Act, GSI pay compensation to Mr Ramos for counselling and medical costs Mr Ramos has incurred and will incur in the future.
GSI contends that its concerns over Mr Ramos’ performance predated the complaint made by Mr Ramos and that the action taken by GSI was reasonable and appropriate to the circumstances. GSI initially disputed whether Mr Ramos had exercised any workplace right but ultimately conceded that he had done so by making a complaint. GSI denies the allegation of constructive dismissal and contends that suspension on pay is not adverse action. It contends that Mr Ramos’ complaint was considered and resolved and that other management action taken was not adverse action within the meaning of the Fair Work Act. The disciplinary action taken against Mr Ramos was said to have been a consequence of his conduct and for no other reason. GSI asserts that Mr Ramos’ suspension was cancelled when it had run its course and that it had not refused to pay him any money due and payable to him. GSI also contends that Mr Ramos has grossly inflated his claim of economic loss and he has not established an inability to work.
Consideration
Mr Ramos claims that GSI took adverse action against him because he exercised a workplace right and made a complaint against GSI in breach of ss.336(a), 336(c), 336(d), 340(1)(a)(i), 340(1)(a)(ii), 341(1)(c), 341(1)(c)(ii), 342(1)(a), 342(1)(b), 342(1)(c), 342(1)(d), 342(2)(a), 342(2)(b), 351(1), 352, 360, 361(1)(a), 361(1)(b), 362(1)(a) and 362(1)(b) of the Fair Work Act.
Section 336 of the Fair Work Act provides:
The objects of this Part are as follows:
(a) to protect workplace rights;
(b) to protect freedom of association by ensuring that persons are:
(i) free to become, or not become, members of industrial associations; and
(ii) free to be represented, or not represented, by industrial associations; and
(iii) free to participate, or not participate, in lawful industrial activities;
(c) to provide protection from workplace discrimination;
(d)to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.
Section 340 of the Fair Work Act provides:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right;
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).
Section 341 of the Fair Work Act provides:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or …
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee--in relation to his or her employment.
Section 342 of the Fair Work Act relevantly provides:
(1) Adverse action is taken by an employer against an employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
…
(2) Adverse action includes:
(a) threatening to take action covered by the table in subsection (1); and
(b) organising such action.
(3) Adverse action does not include action that is authorised by or under:
(a) this Act or any other law of the Commonwealth; or
(b)a law of a State or Territory prescribed by the regulations.
(4) Without limiting subsection (3), adverse action does not include an employer standing down an employee who is:
(a) engaged in protected industrial action; and
(b) employed under a contract of employment that provides for the employer to stand down the employee in the circumstances.
Section 351 of the Fair Work Act provides:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti-discrimination law :
(aa) the Age Discrimination Act 2004 ;
(ab) the Disability Discrimination Act 1992 ;
(ac) the Racial Discrimination Act 1975 ;
(ad) the Sex Discrimination Act 1984 ;
(a) the Anti-Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 1995 of Victoria;
(c) the Anti-Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti-Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti-Discrimination Act of the Northern Territory.
Section 352 of the Fair Work Act provides:
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Sections 360 of the Fair Work Act provides:
For the purpose of this Part a person takes action for a particular reason if the reasons for the action include that reason.
Section 361 of the Fair Work Act provides:
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
Section 362 of the Fair Work Act provides:
(1) If:
(a) for a particular reason (the first person's reason ), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and
(b) the action, if taken by the second person for the first person's reason, would contravene a provision of this Part;
the first person is taken to have contravened the provision.
(2) Subsection (1) does not limit section 550.
Mr Ramos claims that GSI had never questioned his performance as the Dianella store manager or taken any adverse action against him during the period of his employment prior to submitting his complaint on 6 April 2010.
A person under the adverse action provisions will succeed where it can be demonstrated that the workplace right was just “one” reason for the action. There is no requirement that it be the sole or dominant reason for the person taking the adverse action.
Furthermore, once the link is established between the workplace right and the adverse action taken, in accordance with s.361 of the Fair Work Act, there is a reverse onus of proof in that it is up to the employer or other offending person to show that they did not take the adverse action for one of the prohibited reasons in the Fair Work Act.
Mr Ramos relies upon the majority decision of the Full Federal Court in Barclay & Anor v The Board of Bendigo Regional Institute of Technical and Further Education[14]. The reasoning of the joint majority judgment differed significantly from that of the trial judge and the dissenting judge, and gives the adverse action provisions a wider application, and creates for employers (and other persons) a larger area of potential liability than previously believed.
[14] [2011] FCAFC 14; 274 ALR 570
The majority of the Full Federal Court held that the employer must show that the “real reason” or reasons for taking the adverse action are “dissociated from [the impugned] circumstances”:
a)the real reason may not be the reason that the relevant decision maker asserts it is;
b)the real reason is not necessarily the reason the employer thinks it might have been – it might be an unconscious reason – and it does not matter that the employer had a benevolent intent; and
c)if there is an objective connection between the decision to take the action and the attribute or activity in question (for example, exercising a workplace right) a conclusion can be reached that the action was taken because the person affected had that attribute, or engaged in that activity.
The majority said that it is not decisive if the employer subjectively believes that the employee’s activity is not lawful, and takes adverse action in response on that basis. There may still be a breach of the Fair Work Act if from an objective viewpoint the employer’s adverse action can be seen as being connected to the action taken by the employee.
Mr Ramos also asserts that he was bullied and harassed in his employment. He relies upon the NSW District Court case of Bailey v Peakhurst Bowling & Recreation Club Ltd[15]. I accept that the decision reinforces the point that the courts will not countenance bullying and harassment of employees. In that case, the chairman’s persistent abusive behaviour towards the plaintiff combined with the Club’s lack of support for its employee enabled the Court to find a serious case of bullying. As an employer, the Club had a duty of care to provide a safe place of employment and a safe system of work. It breached that duty by allowing the bullying to happen and to continue.
[15] [2009] NSWDC 284; (2011) 274 ALR 570
Mr Ramos’ claim is made under s.340(1) of the Fair Work Act.
Notwithstanding the provisions of s.361(1), Mr Ramos retains the onus of demonstrating in this matter[16]:
a)he either has, or has exercised, a workplace right as defined in s.341;
b)that GSI has taken adverse action against him as defined in s.342(1) of the Fair Work Act.
[16] Barclay & Anor v Board of Bendigo Regional Institute of Technical and Further Education (2011) 274 ALR 570 at [34], Hodkinson v Commonwealth [2011] FMCA 171 at [130]
Did Mr Ramos have a workplace right?
Mr Ramos, being an employee at the time, will have had a workplace right if he can show that he was “able to make a complaint or enquiry… in relation to his … employment”[17]. Mr Ramos was concerned about statements made to him by Ms Cameron and Mr Gordon in the course of his employment. I am satisfied that Mr Ramos was able to make a complaint or enquiry about those statements.
[17] Section 341(1)(c)(ii) of the Fair Work Act
Did GSI take adverse action?
In order to demonstrate that GSI has taken adverse action, Mr Ramos must demonstrate that[18]:
a)he was dismissed;
b)he was injured in his employment;
c)GSI altered his position to his prejudice; or
d)GSI discriminated between him and other employees of GSI.
[18] Section 342(1) Fair Work Act
Dismissal
The Fair Work Act defines “dismissed” to include a situation where an employee resigns but was forced to do so because of conduct, or a course of conduct, engaged in by his employer[19].
[19] Section 386 Fair Work Act
This category of dismissal is intended to capture the common law cases of “termination at the initiative of the employer”. [20]
[20] Explanatory Memorandum to the Fair Work Bill paragraph 1530
The Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd[21] at [23] stated that:
In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to and end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had not effective or real choice but to resign. (endnote omitted)
[21] [2006] AIRC 496
All of the circumstances and not only the acts of the employer must be examined. The circumstances include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. The AIRC in O’Meara v Stanley Works Pty Ltd at [21] – [23] stated:
In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.
In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.
In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign. (endnotes omitted)
The same principle has been applied by Fair Work Australia:
I have attempted to reinforce this authority in the minds of the parties over the course of these proceedings. Whether or not an employee has no choice sometimes manifests itself in quite apparent circumstances. These might include where an employer may refuse to provide work or to provide payment for work. It might also include circumstances in which an employer may threaten an employee in some particularly serious terms or otherwise harass or victimise an employee. In such circumstances the work environment would be found to have been so repugnant or oppressive that it should not have been reasonably endured by the employee. There will be other circumstances. [22]
[22] Mendicino v Tour-Dex Pty Ltd [2010] FWA 9114 at [10]
Mr Ramos resigned on 22 July 2010. At the time of his resignation, GSI had not acted in a manner that could be described as leaving Mr Ramos with no option but to resign. GSI had legitimate concerns about the performance of the Dianella store, the performance of Mr Ramos as store manager and his conduct as an employee in relation to other employees and the policies of GSI. I accept from the evidence of Mr Knowles that the purpose of GSI dealing with those concerns was to attempt to resolve them in consultation with Mr Ramos, not to secure his resignation. Although he was under warning about his conduct and performance, Mr Ramos had no cause for concern unless he breached policies or failed to perform to the required standard in the future.
Mr Ramos places stress upon the frequent management supervision visits by Ms Wilson. Even assuming Ms Wilson was visiting the store too frequently, that alone could not amount to repugnant or oppressive conduct that could not reasonably be endured. Ms Wilson had been tasked to address performance issues at the Dianella store which were a legitimate concern of GSI.
Mr Ramos has accordingly not demonstrated that he was constructively dismissed.
Injure and alter position to the employee’s prejudice
Injures the employee in their employment
In referring to s.342(1)(b) in other proceedings, Federal Magistrate Raphael has stated:
I am of the view that “injury” in this context continues to refer to the deprivation of one of the more immediate practical incidents of employment: see Childs v Metropolitan Transport Trust (1981) IAS Current Review 946.[23]
[23] Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd & Anor [2011] FMCA 58 at [28] citing Childs v Metropolitan Transport Trust (1981) at 948
Altering the employee’s position to the employee’s prejudice
The Federal Court has held that:
It is clear in my view that the words [altering the position to the employee’s prejudice] were added to the section to overcome a situation in which an employer did something short of dismissing an employee but which was something which could be said to be harmful to him or her in his employment.[24]
[24] Blair v Australian Motor Industries Limited (1982) 61 FLR 283 at 290
In considering similar circumstances to the present in another case the Court held:
“Alteration” in this context requires a substantive change in, or reduction of, the advantages enjoyed by the employee in that capacity. Merely to be subject to a disciplinary inquiry or investigation does not, without more, constitute such a substantive change.
…
I consider, with respect, that amenability to a disciplinary charge brought in good faith and on a proper prima facie evidentiary basis is a normal incident of employment and does not of itself, before the laying of the charge, constitute “an adverse affection of, or deterioration in, the advantages enjoyed by the employee” in the sense used by the High Court in the passage from Patrick Stevedores 195 CLR 1.[25]
[25] Police Federation of Australia and Another v Nixon and Anor (2008) 168 FCR 340 at [46]-[48]
Comparison required
Mr Ramos needs to demonstrate a change of circumstances after he made his complaint:
When injury to an employee in his or her employment or the alteration of an employee’s position to his or her prejudice is alleged, an assessment of the impugned conduct calls for a comparison of the position of the employee before and after the employer’s acts to determine the nature of the injury or prejudicial alteration.[26]
[26] Hodkinson v The Commonwealth [2011] FMCA 171 at [163] citing McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 at [349].
Discrimination
The Macquarie Dictionary (5th ed.) relevantly defines “discriminate” in the following terms:
1. to make a distinction, as in favour of or against a person or thing.
The Shorter Oxford English Dictionary (6th ed.) relevantly defines “discriminate” as:
4. Make a distinction in the treatment of different categories of people or things esp. unjustly or prejudicially against people on grounds of race, colour, sex, social status, age, etc.
The element of intent is central to these definitions. To discriminate requires a conscious decision to make a distinction, in this case between people.[27]
[27] Hodkinson v Commonwealth at [176]
Mr Ramos’ complaint is one of direct discrimination. Accordingly, it is necessary for Mr Ramos to prove that GSI deliberately treated him less favourably than its other employees.[28]
[28] Hodkinson v Commonwealth at [191]
In Purvis v State of New South Wales (Department of Education and Training)[29] the central question was whether a disabled child whose disability caused him to behave violently at school had been discriminated against in contravention of s.5(1) of the Disability Discrimination Act1992 (Cth) by being excluded from the school. The High Court held that the relevant comparison, for the purposes of determining whether such a contravention had occurred, was between the child concerned and another child without the disability, but who had behaved in a similarly violent way.[30]
[29] (2003) 217 CLR 92
[30] Per Gleeson CJ at [12], Gummow, Hayne and Heydon JJ at [221]–[225] and Callinan J at [273].
The Full Court of the Federal Court in Barclay & Anor v The Board of Bendigo Regional Institute of Technical and Further Education at [35] noted:
…with the exception of para (d) of item 1 of the table in s 342, which extends the concept of adverse action by an employer against an employee to discrimination between that employee and other employees of the employer, the provisions of Divs 3 and 4 of Pt 3-1 of the Fair Work Act do not require that any comparison be undertaken between the treatment of the employee in question and any other employee or employees, actual or notional, who acted in the same way as the employee in question.
At [36] Gray and Bromberg JJ noted that:
In applying the provisions of ss 341 and 346 of the Fair Work Act, except when the adverse action is confined to discrimination when compared with other employees of the employer, a comparative test of the kind dealt with by the High Court in Purvis is not appropriate.
This indicates that when looking at s.342(1)(d), it is appropriate to undertake a comparative test between the Applicant and another employee who had not filed a complaint but who had behaved in a similar manner.
In Mr Ramos’ case, the question would be whether GSI would have taken the same action against an employee whose conduct and performance was the same as that of Mr Ramos but who had not made a complaint of the type Mr Ramos made.
Threats
A threat is:
a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace.[31]
[31] Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 at [53]
Was adverse action “because” of exercise of a workplace right
Mr Ramos has established a workplace right. GSI concedes that if he were able to establish adverse action, he has alleged that the adverse action was taken for the reason that he had, or exercised, a workplace right and that the provisions of s.361(1) therefore apply. The following observations from Barclay are apposite:
The central question under s 346 [and 340] is why was the aggrieved person treated as he or she was?
The determination of those questions involves characterisation of the reason or reasons of the person who took the adverse action. The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive.[32]
Mr Ramos’ allegations in his points of claim
[32] Barclay v Board of Bendigo Regional Institute of Technical and Further Education at [27]-[28]
Letter dated 23 April 2010
The letter stated as follows:
Dear Agustin
I refer to your letter 6 April 2010, your Outcome Report 16 April 2010, our meeting to discuss these held 20 April 2010 and my subsequent investigations into these issues.
This letter outlines my decisions in respect to the matters raised.
Managers Meeting 30 March 2010
I was present at the part of the meeting described. No one displayed any lack of respect at this part of the meeting or any other unprofessional behaviour. No further action required.
Training Scenario
I have spoken to the Divisional Manager Debbie Cameron and yourself about this incident.
Terms of endearment or pet names like “darl” can cause offense [sic] and the use of such terms at work is totally unacceptable. It is clear you regret its usage as you expressed an apology to your Operations Manager Michael Gordon.
You are not to use such terms at work in future.
The Divisional Manager has clearly taken offense [sic] in respect to the use of this term not only during the training scenario but its usage previously during the Store Managers meeting. In respect to what you have quoted her as saying, her sentiments were appropriate.
However, she has expressed to me her regret that she dealt with this situation in an open forum in front of others. She has agreed that in future such matters will be resolved privately and in a professional manner.
Manager’s Performance and Store Performance
In financial terms, the Dianella Store is returning sales figures that are lower than the same period for last year whilst similar stores are returning sales higher than the same period last year.
In operational terms, there is evidence on file to indicate that the Operations Manager and you have had numerous discussions, often followed up in writing from him on matters relating to store presentation, stock on the floor, donations, staffing etc.
Having considered these and our discussions, my response to store issues you have raised in your letter 6 April 2010 follows:
Performance as a Store Manager
a) The questioning of decisions and store performance by the Operations Manager does not in itself constitute an “attack on integrity and professionalism.” I see such questioning as part of the role of the Operations Manager.
There is documentation to support the Operation Manager’s instructions to you regarding strategies to improve store operation that are your responsibility to implement. None of these show any evidence that can be construed to attack your integrity and professionalism.
Your statements that you have had you[r] integrity and professionalism “attacked” are not supported by the available evidence.
b) The decision in respect to the layout of the Dianella store was taken prior to your appointment and implemented soon after you commenced and I agree you had no part in this decision. The changes were made to bring Dianella’s layout and retail offer in line with our other retail outlets as these have been demonstrating strong sales over previous years.
This change is only one factor, amongst many, that can affect store sales, e.g. prevailing economic conditions, local demographics and competition. We discussed this at our meeting and these issues are always taken into account when we are developing strategies to measure and improve organisational performance.
The issues I believe that have been raised by the Operations Manager are about in-store management and implementation of our retail strategy.
I find no evidence that the Operations Manager has blamed you for the “100% total loss of revenue in the store.” On the contrary, at budget review meetings that I conduct monthly with the Operations and Divisional Manager, he has always shown support for the Store and you as Store Manager.
I am aware that the Operations Manager has been working with you on operational matters (e.g. amount of stock for sale, pricing etc) to improve the Store’s performance.
He is of the view that the major issue for Dianella is maximising the stock available for sale in store. There are often reasons from time to time why this cannot be achieved. For example you have raised a shortage of staff as an issue for your operations. Many of our stores face this issue and still are able to meet and exceed sales targets.
I understand that this is [sic] been the main area of concern and focus to improve Dianella’s sales between you and the Operations Manger.
My view is that you are not meeting the requirements to ensure stock levels are optimised to maximise sales targets. To optimise sales you have a responsibility to implement decisions taken in the manner the Operations Manager directs to achieve this.
Your role in this is accountable and defined in your signed duty statement.
Your responsibility for this is clear and cannot be shifted to others in the organisation. It is clear that you have not fully implemented the retail strategy and directions set by the Operations Manger for your store.
Solution for increasing Store Revenue
a) The decision in relation to the Assistant Manger was not approved by the Operations Manager as he was unavailable at the time. You then sought advice from the acting Human Resources Coordinator. When aware of it, the Operations Manger disagreed with the decision – this is within his authority. The Operations Manager and you were able to reach a compromise decision on this that ensured the Assistant Manager maintained her hours at the store.
In future if the Operations Manager is unavailable for a decision that you wish assistance or guidance with or one that is outside your delegated authority, you are to discuss this with the Divisional Manager as opposed to someone outside the line of responsibility in the retail area.
It is clear the Operations manager questioned your decision-making in regard to this matter; there is no evidence that he questioned your integrity in this regard.
b/c) In respect to the claim for overtime worked, no evidence has been presented to me to indicate that policy PP:HR:07 has been followed, that is, additional hours have not been authorised by the Operations Manager at your request prior to those hours being worked.
As discussed, any additional hours you may have been working has not been an issue in the past. You have been happy to attend the store at the times indicated in your analysis of additional hours worked. This was your decision, not one where you sought approval from the Operations Manager.
If you have chosen these working hours I do not see that the organisation has a responsibility to retrospectively compensate you when our policy on this is clear.
I therefore do not agree that you are owed the overtime you have claimed.
In addition, our discussions and those that I have had with your Operations Manager indicate that you have requested and had been approved the flexibility to attend to personal business during working hours, this includes days off as per our agreement with you in line with Saturday working days etc. I believe you have been afforded a reasonable degree of flexibility in the past and I see no reason why this should not occur in the future.
You are instructed to adhere to policy PP:HR:07 if you believe you need to work overtime in the future.
As to your assertion that the Operations Manager has indicated that you need to work overtime to improve the store’s performance, he has stated to me that “sometimes it is necessary to step up and put in the extra effort.” I agree with this.
This needs to be balanced within the organisation’s policies and practices in regard to flexibility and your own personal circumstances. You have stated to me that you will not be working additional hours in future and that if you do so you expect to be compensated. Again, I refer you to policy PP:HR:07 to manage this.
I note since we met, that you advised, rather than sought approval from the Operations Manager that you were taking two days off (leave type not specified). You need to seek approval from your Operations Manager for time off.
If there is a breach of our procedures in this regard in future, you may face disciplinary action.
Matter raised in Outcome Report not yet addressed herein
I do not agree that all discussions or instructions in respect to the store or yourself should always be in writing. It is good practice for such matters to be discussed informally and resolved in that manner. If appropriate e.g. the matter is complex or of a serious nature, then instructions will be written. I believe that your Operations Manager has a sound record in doing this.
Conclusion
The Operations Manager has raised his concerns with you in respect to the performance of the Dianella Store and ways in which you can improve store performance. He has also raised areas in which you need to improve e.g. the amount of stock available for sale that are not canvassed in your letter April 6 2010.
I find that these operational, in-store issues are most salient to improving store performance and that many of the issues you have raised are irrelevant to this or overly emotive e.g. “accusation”, “attacked my integrity”, etc.
There is no evidence that attacks on your integrity or professionalism are occurring.
It is clear that the Operations Manager is questioning operational decisions and setting directions. He has conducted himself well and has to date provided a constructive working environment with you to improve the performance of the Dianella store.
I require your written response to my letter by 4pm Tuesday 27th April 2010. Please contact Cheryl Greene on 9463 0500 to arrange for the receipt of your response.
I require you to attend a meeting with me at my office to discuss this again on Wednesday 28th April at 11.00 a.m. I am happy for you to have a support person present at that meeting should you feel that would be of benefit.
Please confirm your attendance and that of a support person if elected to Cheryl Greene on 6463 0500.
Yours sincerely
John Knowles
CHIEF EXECUTIVE OFFICER
Threat of disciplinary action
I accept that this letter did not constitute adverse action as defined. The only warning that was issued related to an expressed insistence on following established policies and procedures in relation to overtime and leave, and the statement about possible future disciplinary action was not a threat in terms necessary to constitute adverse action.
Mr Knowles was the decision maker. I accept his evidence concerning the letter. In particular, he gave evidence that he did not take this action because of the “complaint”.[33] Mr Knowles believed that Mr Ramos had breached GSI’s policies and thereby committed an act of misconduct by not getting his manager’s consent to taking a day off.[34]
[33] Affidavit of Mr Knowles sworn 10 December 2010 at [169]
[34] Affidavit of Mr Knowles sworn 10 December 2010 at[56] to [58] and [168(a)]
The merits of Mr Knowles’ belief are not relevant. Even if Mr Knowles was wrong and Mr Ramos had not breached the policy, this does not alter the reason for the statements made by Mr Knowles.
Alleged discrimination
The evidence does not persuade me that Mr Knowles showed partiality in his investigation of Mr Ramos’ complaint. Even if Mr Knowles did favour the statements made by Mr Gordon and Ms Cameron, the outcome of the investigation had no consequence for Mr Ramos. The conduct accordingly does not constitute discrimination and does not constitute adverse action as defined.
As to Ms Cameron, it was not a question of preferring her evidence. Her evidence was consistent with Mr Ramos’ version. In addition, no action was taken against Mr Ramos as a result of the incidents in question other that a reasonable instruction not to use terms such as “darl” at work.
Mr Ramos accepted Mr Knowles’ decision (see A14).
As to Mr Gordon, Mr Knowles was simply investigating the complaint made by Mr Ramos. No action was taken against Mr Ramos as a result of Mr Gordon’s findings.
In any event, I accept Mr Knowles’ evidence that he did not take this action because of the “complaint”.[35]
[35] Affidavit of Mr Knowles sworn 10 December 2010 at [169]
Letter of 3 May 2010
I accept Mr Knowles’ evidence concerning this letter which relevantly states:
Dear Gus
…
Subsequent Deliberations
The following are outcomes that need to be achieved in the near future:
· The relationship between the Store Manager Dianella and the Operations Manager be open and professional; and
· The Store Manager Dianella be accountable for the financial performance of the store as outlined in the duty statement.
In respect to the first outcome I have drawn the conclusion that this is not possible with the current personnel. For example, whilst you have indicated that you are prepared to work with the Operations Manager, you still hold to the view that he has “attacked your integrity and professionalism.” I find it difficult to reconcile this belief with your statement about working together in the future. This raises a strong concern in my mind that similar issues may arise in the future.
In respect to the second outcome, I am concerned that the current and future Dianella financial targets will not be accepted by you as a measure of both the store’s financial performance and therefore your own performance. Whilst I understand your rationale for this, I believe the targets are achievable and that the Operation Manager’s view as to why these are not being achieved is correct. It is imperative that the Store Manger at Dianella be committed to this and accepting of the responsibility that goes with achieving this.
Your position on this and your dismissive attitude towards the budget provides me with little confidence that this can be achieved at Dianella.
Accordingly I have decided that you will be transferred to the recently vacated position of Store Manager at Armadale.
I envisage a number of benefits from this that will resolve the above issues:
· The role has a different Operations Manager;
· The store has had no major layout or retail changes in it since it was commissioned, past performance, current performance and budget can be measured without having to compensate for a significant past change.
This represents a clear opportunity to start fresh. I will instruct the Operations Manager for this store to develop a performance management programme for you and the store, not only in respect to financial performance but other key aspects of retailing.
I understand that the Armadale store is a Level One store, however your current salary as a Level Three Store Manager will be maintained.
I require your written response to this decision and to show cause as to why this should not occur, by 1pm Thursday 6th May 2010.
Please contact Cheryl Greene on 9463 0500 to arrange for the receipt of your response to this and the summary of meeting outcome.
Yours Sincerely
John Knowles
Chief Executive Officer
The transfer (alleged by Mr Ramos to be a “demotion”) never occurred, so no adverse action as defined occurred. Mr Knowles was the decision maker in regard to the transfer. Mr Knowles’ reasons for the proposal were[36]:
a)Mr Knowles could not reconcile the differences between Mr Ramos’ version and Mr Gordon’s version of the 31 March 2010 meeting and that it would therefore be difficult for Mr Ramos to remain at the Dianella store under the supervision of Mr Gordon;
b)Mr Ramos would not accept any responsibility for the poor performance of his store and was unlikely to accept responsibility in the future, so it was better to transfer him to a store with a proven track record.
[36] Affidavit of Mr Knowles sworn 10 December 2010 at [71] to [72] and [168(b)]
In any event, I accept Mr Knowles’ evidence that he did not take this action because of the “complaint”.[37]
[37] Affidavit of Mr Knowles sworn 10 December 2010 at [169]
Letter dated 12 May 2010
The letter states as follows:
Dear Gus
I am writing in regard to my deliberations following our meeting 10th May 2010.
Position as Dianella Store Manager
Outcomes that need to be achieved in the near future, that I have advised in previous correspondence 3rd May 2010 are:
· The relationship between the Store Manager Dianella and the Operations Manager be open and professional: and
· The Store Manager Dianella is accountable for the financial performance of the store as outlined in the Store Manager’s duty statement.
I have not changed my position on the above.
In my correspondence to you 3rd May 2010 I conveyed Good Samaritan Industries (GSI’s) intention to transfer you to the Armadale Store.
As requested you have provided a number of reasons as to why the proposed transfer should not occur.
In response I advise that these reasons are not accepted:
a. GSI has offered to maintain your salary as a Level 3 Store Manager;
b. The Armadale store is under review, however the area is geographically attractive for GSI and we are committed to it. We are planning to relocate within the area. This is similar to what GSI is currently doing for two other stores. Accordingly the current Manager vacancy has been advertised as a permanent, full – time position and it is our intention to retain this role. All stores are subject to regular review based in their performance and this will continue into the future:
c&d. It is not the responsibility of GSI to compensate staff for home to work travel or the reliability of their vehicle by way of employment location; and
e. GSI provides carer’s leave and flexibility to staff including Store Managers to assist in managing family responsibilities.
GSI reserves the right to transfer staff between its location to meet its operational requirements.
At our meeting 10th May 2010 you indicated your agreement to:
· Enter into a Performance Management Framework for the Dianella Store; and
· Be accountable for the Dianella store budget in the coming year
This is consistent with the outcomes I have outlined for the Dianella store.
Therefore, in good faith and on this basis, I am prepared to revise my decision to transfer you to the Armadale store and retain you in the role as Dianella Store Manager.
This is strictly subject to the following:
· Ms Joy Wilson will assume the role as the Operations Manager for the Dianella Store and you will report directly to her; and
· Attached is a Performance Management Framework that I require you to sign and return to me by 12.00pm (noon) 14th May 2010. If you have any questions or concerns about this please put these into writing to me by the same date and fax to my office and I will review these.
Vehicle Allowance Claims
You have stated that your claim was made according to the best of your recollection and that you will accept my decision in regards to payment.
I have advised that it is not acceptable to make claims for expense re-imbursements that cannot be verified and that you should have sought advice as to how such a claim in arrears could have been made to avoid submitting incorrect claims.
You have indicated that you believed the Payroll Officer would sort the claims out. In a similar manner you have indicated to me that payroll’s payment to you of unauthorised time-off in lieu 20 April 2010 indicated that it had been approved.
Whilst areas such as payroll and accounting will check claims it is not their role to act as a routine checking service for you, especially if you have not advised them that you are uncertain about a claim. Insufficient evidence exists for a claim or the matter has not received appropriate approval.
It is your responsibility to ensure claims, time sheets, purchase orders and other requests and forms are submitted accurately and with appropriate approvals. As a Store Manager you have a significant duty n this regard and I expect these duties to be discharged with care.
In respect to your claim dated 9th April 2010, this will be approved, however the following specific items will not:
13th July 2009 Records indicate you had a day off as Time Off in Lieu
27th July 2009 Records indicate you had a day off as Time Off in Lieu
10th August 2009 Records indicate you had a day off as Time Off in Lieu
23rd March 2010 Records indicate you were on Annual Leave
7th April 2010 Claimed 9th April 2010 and again claimed and paid 21st April 2010
8th April 2010 Claimed 9th April 2010 and again claimed and paid 21st April 2010
9th April 2010 Claimed 9th April 2010 and again claimed and paid 21st April 2010
After our 10th May meeting I was presented with a travel reimbursement claim you made 7th May 2010. There are four claims I will not approve:
30th September 2009 Manager’s Meeting
16th December 2009 Manager’s Meeting
17th December 2009 Meeting
30 March 2010 Manager’s Meeting
The Store Manager meetings held at Canning Vale are not eligible for a travel claim. On those days, Canning Vale is your place of work.
If the above meeting 17th December refers to the job interview for Operation Manager, I do not believe this is eligible for re-imbursement as this was personal business being undertaken by you, albeit internal to GSI. If there was another meeting as GSI that day you were requested to attend, please provide details and I will consider re-imbursement.
Banking Shortfall 27th April 2010
I am of the view that it is not possible to further resolve this issue. As this is the only instance of serious discrepancy since you began at GSI I will accept human error has caused the shortfall.
It is important that banking reconciliations be conducted with great care to avoid such discrepancies in the future.
Sick Leave 1st May 2010
Thank you for the clarification on this matter, I accept the explanation.
Organisational Policy
I have raised my concerns about seeking appropriate approvals and providing accurate information.
The number of issues in this regard that have arisen whilst I have sought to resolve your initial complaint is not acceptable and there is room for considerable improvement in the management of such issues.
It is important that you make improvements in these areas and that you make familiar with company policy, a copy of which is located at Dianella.
I request that you read policy “PP HR 017 Code of Conduct” as this provides the basis for conduct of the above and other conduct as GSI.
Any breach of policy in future may result in serious disciplinary consequences.
If in doubt about issues, e.g. expense claims, you must consult with your Operations Manager, in his/her absence your Divisional Manager, and in her absence, myself. This will help avoid these issues in future.
I will write separately on your claim for unpaid overtime as I am still considering the information provided.
If you have any other questions or concerns about matters raised in the correspondence please put these into writing to me by 12.00pm (noon) 14th May 2010 and fax to my office and I will consider these.
Yours sincerely,
John Knowles…
Threatened dismissal
There was no threat of dismissal. Mr Ramos was informed that disciplinary action would be taken if he breached GSI policy in future. This does not constitute adverse action. The statement was in my view reasonable given the travel claims made by Mr Ramos on days he was off work. Mr Ramos acknowledged those errors (see A18).
In any event, I accept Mr Knowles’ evidence that he did not take this action because of the “complaint”.[38]
[38] Affidavit of Mr Knowles sworn 10 December 2010 at [169]
Performance Management Framework
A request to sign a document confirming the role of manager does not constitute adverse action as defined. I accept from the evidence that there were ongoing problems with Mr Ramos’ performance and Mr Knowles wanted to ensure Mr Ramos was made aware of his responsibilities by asking him to sign the performance management framework.[39] At the meeting on 10 May 2010 Mr Ramos had agreed to sign the performance management framework.
[39] Affidavit of Mr Knowles sworn 21 April 2011 at [9], Affidavit of Mr Knowles sworn 10 December 2010 at [168(c)]
In any event, I accept Mr Knowles’ evidence says that he did not take this action because of the “complaint”.[40]
[40] Affidavit of Mr Knowles sworn 10 December 2010 at [169], Affidavit of Mr Knowles sworn 21 April 2011 at [9]
Letter dated 19 May 2010
The letter states:
Dear Gus,
In respect to the claim for overtime worked, the security reports provided by you in relation to your claim have not altered my position on this matter.
As previously advised, overtime at GSI for Store Managers is described in the Collective Workplace Agreement:
For managers of retail outlets:
·There are no specific hours of duty other than the requirements to attend at the store and/or attend to management duties at GSI or elsewhere for a minimum of 150 hours per four week period.
·There is no entitlement to shift or weekend loadings referred to in subclause (5), overtime, or time off in lieu unless required by the Manager Retail Operations or the relevant Divisional Manager to work an additional day or significant additional hours for a specific project or purpose.
GSI has established a policy for the operational management of this issue, policy PP:HR:07 which you have in your office, the relevant purposes from the policy are:
· TOIL will be granted where an employee is required by GSI to work overtime.
· All TOIL and overtime worked must be approved in advance. TOIL can only be taken at such time as is mutually agreed upon between the employer and the employee.
· TOIL worked must be taken within a month of its accrual. The maximum TOIL that can be accrued is fifteen hours.
The additional hours being claimed have not been authorised by the Operations Manager or any other senior Manager at your request prior to those hours being worked.
Furthermore, the security log only indicates when the store is being opened or closed, it is not a time-keeping record and does not indicate that work has been commenced or finished.
As a Manager you are required to ensure the store is open sufficiently early to allow yourself and staff to enter the premises and prepare for work, similarly at the end of the day. This is reasonable additional time that GSI expects from you in your role. How this is put into operation should be negotiated between yourself and the Operations Manager using the Collective Workplace Agreement as your guide.
I trust this clarifies matters.
Yours sincerely
John Knowles
CHIEF EXECUTIVE OFFICER
The letter is an explanation of GSI’s TOIL policy and advice of the application of it to Mr Ramos. The application of the policy could only be adverse action if it was applied in a discriminatory fashion. I am not persuaded that it was. It is reasonable to expect a store manager to open a store in advance of the attendance of other staff, and to close it after their departure as part of the manager’s normal duties. The relevant comparator here would be another store manager, not the subordinate staff. In any event I do not accept that the action was taken by Mr Knowles because of Mr Ramos’ complaint.
Events of 20 May 2010
Ms Wilson denies the allegations made against her by Mr Ramos[41]. Her evidence is untested as she was not required for cross-examination. I have no reason to disbelieve her. In any event, the alleged conduct does not constitute adverse action as defined.
[41] Affidavit of Ms Wilson sworn 10 December 2010 at [40]
I accept Ms Wilson’s evidence that her reference to the performance management framework had nothing to do with the “complaint”.[42]
[42] Affidavit of Ms Wilson sworn 21 April 2011 at [4]
3 June 2010 suspension
In my view, a suspension on pay pending an investigation of allegations made may constitute adverse action as defined because the benefits of working are not limited to being paid. Work also provides non economic benefits related to self esteem and personal fulfilment.
However, no decision on the validity of the complaints was made at the time of the suspension. Rather, the complaints were referred for investigation.[43]
[43] Affidavit of Mr Knowles sworn 10 December 2010 at [125]
In any event, Mr Knowles says that he did not take this action because of the “complaint”.[44] I accept his evidence. The reason for the suspension was unacceptable behaviour in the workplace by Mr Ramos.
[44] Affidavit of Mr Knowles sworn 10 December 2010 at [168(e)] and [169]
Letter dated 16 June 2010
The letter states:
Dear Gus,
Written warning of unsatisfactory performance and misconduct
I refer to your meeting with Sou Lin Tan on 11th June 2010 in the presence of Cheryl Greene and Carmela Ramos in response to the complaints received by GSI from your staff.
I confirm that the meeting was held to discuss the matters outlined in my correspondence 4 June 2010, namely:
1. That you have used profane language to staff in front of other staff;
2. That you have shouted at staff in front of other staff;
3. That you spend an excessive amount of time in your office attending to personal phone calls and other business;
4. You are delegating too much work to your staff that is your responsibility; and
5. The above make staff feel humiliated, pressured and intimidated.
I further confirm that you were given an opportunity to respond in writing to the above and the same opportunity at the meeting 11th June 2010.
GSI has fully investigated the facts surrounding these matters.
In summary the report finds that on balance, the first two complaints can be substantiated.
The other matters of complaint raised in my correspondence have been considered and on balance there is insufficient evidence to substantiate a breach of discipline in relation to these.
Please find attached the report by the Divisional Manager Sou Lin Tan that I requested her to undertake.
After carefully considering your responses, I formed the view that your explanations are not acceptable in respect to the first two complaints. Your actions breach GSI’s Code of Conduct.
Breach of Discipline
On 12th May 2010 I wrote to you on a number of matters, including your conduct, I supplied a copy of the GSI Code of Conduct and advised you, in writing, that should there be any further breaches of GSI policy there may be serious disciplinary consequences.
This breach of the Code of Conduct, namely that you have:
· Used profane language to staff in front of other staff; and
· Shouted at staff in front of other staff;
must be considered in light of my previous advice and the more serious nature of these breaches, means more serious disciplinary action must be taken.
Accordingly, we advise that this letter constitutes a final warning that any further breach of GSI’s Code of Conduct will result in disciplinary action being taken which could include termination.
Performance Management
On 14th May 2010 you signed your acceptance of a Performance Agreement outlining the matters that require your attention at the Dianella Store and the outcomes that are expected of Good Sammy Store Mangers.
Upon your return to the Dianella Store from suspension this will continue to be actioned by Retail Operations Manger, Joy Wilson who will work with you to ensure the agreed performance targets are met, however the onus is on you, as the Store Manager, to ensure the required activities are undertaken to a day to day basis.
In addition to the Operation Manager’s regular review of progress against the Performance Agreement, there will be formal fortnightly assessments. This process will conclude on 31st August 2010. If you require assistance or guidance please speak to your Operations Manager, Joy Wilson.
Until that review is completed, your annual increment due July 1 2010, which is based on performance, will be deferred. This will be reconsidered at the time this review takes place.
Failure to meet the targets outlined in the Performance Agreement could result in termination of employment.
Counselling
It can be difficult to resolve workplace conflict and GSI will arrange for professional counsellors to meet with Dianella staff, including you, and conciliate working arrangements going forward, support staff and ensure that the matters raised in the complaints can be appropriately dealt with.
The counselling service is available to all staff and should you wish to use this on an individual basis please contact Sou Lin Tan who will provide you with the details.
Conclusion
I will review the progress of your performance on 31st August 2010 or earlier if any further misconduct occurs before that date. At this meeting an assessment will be made of your suitability for continued employment with GSI.
GSI considers the matters discussed in this letter to be serious.
A meeting will be arranged to implement the conciliation process and your return to Dianella as Store Manager. Until this is finalised, you will remain on suspension with full pay.
In my view, the statements made do not constitute threats in a relevant sense and there is accordingly no adverse action as defined. A warning of disciplinary action, including possible dismissal, as part of a principled disciplinary process foreshadows a possible future detriment as a consequence of possible future conduct but is not an act of retaliation and is not, and is not intended to be, menacing.
I accept Mr Knowles’ evidence that the warning was issued because the investigation had found that Mr Ramos had[45]:
a)used profane language; and
b)shouted at staff.
[45] Affidavit of Mr Knowles sworn 10 December 2010 at [143] to [146] and [168(f)]
I also accept Mr Knowles’ evidence that he did not take this action because of the “complaint”.[46]
[46] Affidavit of Mr Knowles sworn 10 December 2010 at [169]
Cancellation of pay on 23 June 2010
At this time Mr Ramos’ suspension had been lifted and he was expected to return to work. He declined to return to work because of illness. Informing an employee on sick leave that he is no longer entitled to be paid as his accrued paid sick leave entitlement was exhausted does not constitute adverse action as defined.
I accept Mr Knowles’ evidence that the decision was made because Mr Ramos[47]:
a)was not able to work owing to illness;
b)did not have sufficient paid sick leave to cover his absence.
[47] Affidavit of Mr Knowles sworn 10 December 2010 at [152]
In any event, Mr Knowles says that he did not take this action because of the “complaint”.[48] I accept his evidence.
[48] Affidavit of Mr Knowles sworn 10 December 2010 at [169]
Letter dated 9 July 2010
This letter states:
Dear Gus,
Annual Leave Entitlements
I refer to your email dated 8 July 2010 to Cheryl Greene requesting for full payout of your annual leave entitlements.
Upon review of your request we have found that this is not permitted under our Collective Agreement nor the new National Employment Standards as you have less than 4 weeks accrued annual leave entitlements.
We propose the following:
1. Your accrued annual leave entitlements be used to cover your personal leave without pay for the pay period ended 2 July 2010. This can be effected today if you give us your permission to do so before 2pm today otherwise next week.
2.The balance of your accrued annual leave entitlements be used to cover your personal leave without pay for the pay period ending 16 July 2010. This will be paid in the next pay cycle.
I await your agreement to the above proposal.
Yours sincerely
John Knowles
Chief Executive Officer
The failure to pay out leave in these circumstances was not, in my view, adverse action as defined. I accept Mr Knowles’ evidence that the reason for the refusal was that Mr Knowles understood that such a payment was not permitted at law.[49] In any event, I accept, Mr Knowles’ evidence that he did not take this action because of the “complaint”.[50]
[49] Affidavit of Mr Knowles sworn 10 December 2010 at [160] and [168(g)]
[50] Affidavit of Mr Knowles sworn 10 December 2010 at [169]
Apparent further allegations
Mr Ramos’ evidence suggests that there was adverse action beyond the allegations set out in the points of claim. However the pleading was not amended. Given the detail and scope of the adverse action alleged, and the lack of substance to those allegations, I do not accept that Mr Ramos’ evidence provides a proper basis for any other allegations of adverse action.
Applicant’s claim for compensation
As Mr Ramos has failed to demonstrate any unlawful adverse action against him by GSI, his claim for compensation fails. The only loss suffered by Mr Ramos is in consequence of his own act in resigning. That resignation was not forced by GSI’s conduct.
Further, Mr Ramos’ evidence in cross-examination of his attempts to gain any alternative employment were unconvincing. I find that he has failed to mitigate any loss he may have suffered. Mr Ramos has not sought to adduce any expert or other independent evidence as to his health, his inability to work, his inability to seek alternative employment or as to his prospects of finding alternative employment.
Conclusion
The application by Mr Ramos should be dismissed and I will so order.
I will hear the parties as to any issue of costs.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 24 August 2011
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